Founding Fathers feeling conned
Yes, when they wrote their final document in a flourishing longhand, the Founding Fathers didn’t make it easy for future centuries’ students to speed-read their “Constitution for the United States of America.” And yes, the founders would think it’s a knee-slapping hoot that today we think their every S looks like an F.
But if Tom Jefferson, James Madison and their fellow founders had somehow come back to 2021 to spend a few months in the new city they named for their president, they’d surely have been shocked, saddened — and maybe enraged — to have seen on Jan. 6 how we have messed up the democracy they so carefully crafted and then bequeathed to us to simply maintain.
Then in this past impeachment week, the founders would have been disgusted to see how their constitutional caretakers rushed to get past the Senate impeachment trial of Donald Trump — and get on with the presidency of Joe Biden. The founders especially would have been dumbfounded that America’s 2021 political leaders seemed to have apparently missed the founders’ whole point about the urgency and importance they expected would be applied to precisely this type of impeachment trial where a president was discovered to be clearly unfit and unworthy of serving in office — not now, not ever!
After all, this wasn’t some coded message they had hidden in the middle of a muddle of Constitution S’s that look like F’s. No, this was a point the founders believed they had made clearly — right at the top of their constitutional instruction manual for how to conduct a proper impeachment.
For weeks, the Constitution’s authors just shook their heads as Trump’s fellow Republicans and his impeachment lawyers repeatedly argued that it was “unconstitutional” to hold an impeachment trial for someone who is out of office. They quoted the Constitution’s Article II, Section 4, provision that impeached and convicted officers “shall be removed from office.” Republicans had argued that since Trump is out of office he cannot be impeached — but the Senate rejected that view by a majority vote.
But the founders nodded with approval each time the House’s Democratic Party impeachment managers — who won plaudits from all sides for their skill — countered that the constitution also provides that impeachment conviction can mean “disqualification” from ever again running for president.
Yet, during the Senate’s impeachment trial, the House impeachment managers never got around to fully and powerfully utilizing the full point that the founders made in the Constitution. In Article I, Section 3, the Constitution makes clear that impeachment can result in two distinct and equally important outcomes: removal from office and disqualification from ever again holding federal office. And the House impeachment managers could have done far more to emphasize the fact that the Constitution gives far more descriptive space, and the importance that signifies, to the second outcome: disqualification from holding a future office.
Consider the Constitution’s Article I wording:
“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States …”
Now consider what the founders were really telling us there. We have seen how spare the framers could be. Impeachment, they wrote, should be for “Treason, Bribery, or other high Crimes and Misdemeanors.” Period. Yet the framers stated that “disqualification” meant one couldn’t “hold” or even “enjoy” any “Office of honor, Trust or Profit.”
And that, of course, was the central point of what this trial was really all about. Disqualification of former President Trump from ever again running for president or running for, or even accepting appointment to, any other federal office. Trump, the loser in the 2020 election, was still president when the House impeached him.
But it was necessary and proper for the Senate to continue with its impeachment trial of Trump — because that was the only way the Senate could fulfill its constitutional duty to render a verdict on whether Trump would be convicted and thus disqualified from ever running again.
And that brings us to our final performance of constitutional con and consummate shame. Senate Minority Leader Mitch McConnell well understood all of the above. Yet, in what started off as a powerful statement on the Senate floor, McConnell forcefully denounced Trump for having incited the deadly Jan. 6 insurrection riot at the Capitol. But then he went on to quote the Constitution’s Article II provision on removal from office — contending that you cannot remove Trump from an office he no longer holds.
But McConnell carefully avoided quoting the preceding lengthy mention of the Article I provision that would have authorized Trump’s “disqualification” from ever holding any federal office.
There are no words.